An organization that claims to watch the Department of Homeland Security and the Department of Justice has published a list of government employee “targets” who would supposedly stand in the way of Donald Trump’s anti-immigrant agenda. These include the head of the Asylum Division at USCIS, several Immigration Judges, and the Director of the Legal Access Program at EOIR (the Executive Office for Immigration Review – the office that oversees our nation’s Immigration Courts). The clear purpose of the list–which includes personal photos (presumably taken from social media), salary information, and job histories–is to intimidate the “targets” and force them out of government.
While I am certainly not a big fan of our dysfunctional immigration system, I find the idea of targeting individual government employees to be repugnant and cowardly, and in this case, dishonest and misogynistic. (more…)
In an announcement earlier this month, USCIS claims to have “reduced overall backlogs by 15%.” This sounds like good news, and it would be–if it were actually true.
The reality, as discussed in the same announcement, is that “USCIS received 10.9 million filings and completed more than 10 million pending cases” in FY 2023 (October 1, 2022 to September 30, 2023). While completing 10 million cases is no small accomplishment, by my math, if the Agency received 10.9 million cases and completed 10 million cases, their backlog has actually increased by 900,000 cases.
So why does USCIS claim that the backlog has been reduced by 15%? The answer hinges on the definition of the term “backlog.” (more…)
Thanksgiving is the immigrant holiday because it is a day to remember and celebrate new arrivals in a new land, and friendship between immigrants and indigenous people. It is also the anti-immigrant holiday, since things did not end too well for the indigenous people in the original T-Day story.
These days, though, we need to take our good news where we can get it, and so in that spirit, I want to focus on the positives of Thanksgiving. In particular, I’d like to discuss some reasons for asylum seekers to be thankful. And yes, there are a few. (more…)
Last time, I wrote about the Ombudsman’s 2023 report and the state of USCIS. Today, we’ll look at what the report says about how USCIS is responding to its many challenges. (more…)
In June of this year, the USCIS Ombudsman released its annual report, where it “details the urgent systemic issues affecting U.S. Citizenship and Immigration Services… and identifies potential solutions to resolve these problems.” This year, the agency’s various backlogs loom large in the 120-page report. Making progress on those backlogs has been difficult for various reasons, including the state of the world: “Global upheaval, political confrontations, and climate issues created populations in need of temporary protection, and the United States took on its share of assistance to these populations.” While the Ombudsman applauds the Biden Administration’s efforts to help those in need, it notes that other asylum seekers and immigrants have been harmed by diverting resources that might otherwise have been available to complete their cases.
To be honest, I have avoided reading the report until now because it is simply too depressing. We know the basic problem: Too many people and not enough resources. We also know that Congress–which controls the nation’s purse strings–is not likely to approve any additional funding, especially while the House of Representatives remains in Republican hands.
As I reviewed the report, I found myself feeling some sympathy for USCIS, which is being asked to do too much with too little. But the key word in that last sentence is “some,” as I also feel that–at least with regards to affirmative asylum cases–the agency has utterly failed to take bold and creative steps to alleviate the ever-increasing backlog.
Here, we’ll discuss the Ombudsman’s findings and try to explicate what is happening at one of the U.S. government’s most troubled agencies. (more…)
Not long ago, USCIS started accepted the I-589 asylum form online. Of course, I resisted filing online because (1) I don’t like learning new things, (2) I don’t like computers, and (3) I REALLY don’t like learning new things on computers. But I also don’t like waiting (literally) six months for my clients’ asylum receipts, all the while not knowing whether USCIS has lost their application. And so urgency and lawyerly duty have finally overcome inertia, and I filed my first I-589 online.
Here, I want to talk about the process of filing online and give some suggestions for improving the “user experience” (short answer: There are advantages to filing online, but there is also room for improvement). (more…)
USCIS recently issued its Fiscal Year 2022 report (covering the period from October 1, 2021 to September 30, 2022). The report discusses USCIS’s efforts to dig itself out of the hole created by the pandemic and the prior Administration, and sets forth plans for the current fiscal year.
There were some positive developments during FY2022 and most of these relate to the immigration agency’s efforts to reduce its various backlogs (though this report does not discuss the asylum backlog) and to address humanitarian crises in Afghanistan and Ukraine. These developments were made possible with the help of Congress, which appropriated additional funds for USCIS’s mission (USCIS normally receives more than 95% of its funding from customer fees). The agency notes that for FY2023, “Continued congressional support is critical to eliminate current net backlogs and achieve a robust humanitarian mission, while a new fee rule will help prevent the accumulation of additional backlogs in the future.” (more…)
What’s it like to practice immigration law these days?
For a case in Immigration Court, we write the affidavit, gather evidence, get witness statements, research country conditions, organize everything, copy it, and submit copies to the court and to DHS within the 30-day deadline. We then hold practice sessions with the client and witnesses. A few days before the trial date, we check the online system. The case is canceled. There is no new date. There is no explanation.
We file an application for an asylee’s Green Card. The case takes forever. The client moves. We file a change of address and get an online confirmation. Finally, the client receives an online notice: The Green Card has been mailed and delivered. But not to his current address. USCIS has sent the card somewhere else. Maybe to his old address, but who knows? He does not have it, and requests to re-deliver the card have no effect. (more…)
USCIS has a new Director. Ur Mendoza Jaddou is the daughter of a Mexican immigrant and an Iraqi immigrant. She started her career on Capitol Hill working for pro-immigrant Congresswoman (and former immigration attorney) Zoe Lofgren, and later served in the Department of Homeland Security during the Obama Administration. Ms. Jaddou spent her Trump-Administration exile as a law professor at American University. Earlier this year, President Biden nominated her to direct USCIS. The Senate confirmed her nomination on July 30, 2021 and she assumed the directorship last week.
In her first news release, Director Jaddou states–
As a proud American and a daughter of immigrants, I am deeply humbled and honored to return to USCIS as director. I look forward to leading a team of dedicated public servants committed to honoring the aspirations of people like my parents and millions of others who are proud to choose this country as their own. USCIS embodies America’s welcoming spirit as a land of opportunity for all and a place where possibilities are realized.
Since January, USCIS has taken immediate steps to reduce barriers to legal immigration, increase accessibility for immigration benefits, and reinvigorate the size and scope of humanitarian relief. As USCIS director, I will work each and every day to ensure our nation’s legal immigration system is managed in a way that honors our heritage as a nation of welcome and as a beacon of hope to the world; reducing unnecessary barriers and supporting our agency’s modernization. (more…)
Here’s a point that should be self-evidence, but isn’t: Bureaucracy exists to facilitate the implementation of the law. Congress passes a law, and then government agencies create a system of policies and procedures to put that law into effect. In principle, this system should be easy to use and efficient, and should allow people to obtain the benefits to which they are entitled. In other words, it should be the exact opposite of what we have with the USCIS.
There are many problems with the agency that adjudicates immigration benefits (including asylum), but here, I want to focus on one particular area of concern: USCIS forms. USCIS forms are poorly designed, confusing, inconsistent, culturally insensitive, and inefficient. Here, we’ll discuss these problems in a bit more detail, and I will make some suggestions for improvement.
Let’s start with the most basic question on every USCIS form–the applicant’s name. Almost every form has boxes for an applicant’s first, middle, and last name. The problem is that naming convention vary widely, depending on where you are from. Many cultures do not have a first-middle-last name format, and so the USCIS question does not make much sense. One solution might be to ask the question in a more specific way: “Write your name as it appears on your passport.” Of course, not everyone has a passport, so maybe a second question can ask: “Write your name as it appears on your birth certificate or other government-issued identity document.” In addition to these iterations, the name question would also need to ask about “all other names used” (as many USCIS forms currently do). The confusion surrounding this very basic question–What is your name?–illustrates the difficultly of creating one-size-fits-all forms.
Form a forum for reforming forms.
Another problem arises with regard to addresses and places of employment. One issue here is that address formats vary widely by country, and the forms generally only allow for addresses in the format that we use in the United States. Another issue is that different forms request address and employment histories in different ways. So for example, the I-589 form (application for asylum) allows you to list one address or one job per line, so that your address and job histories fit onto one page (with room to spare). The I-485 (application for permanent residency), by contrast, requires this information in a different format, so that less information takes up much more space. The N-400 (application for citizenship) requests the same information in a third format. Maybe this is a minor quibble, but the inconsistencies between the various forms is confusing, and it is not confined only to the applicant’s address and work histories.
One area where inter-form differences sometimes create problems is the issue of arrest history. Different forms ask about this in different ways. Sometimes, USCIS wants information about all arrests. Other times, they want only information about criminal arrests or convictions. In some questions, USCIS wants to know about arrests anywhere in the world; other times, they want only arrests that occurred in the United States. Indeed, if you look at the main forms a successful asylum applicant will complete over the course of their time with USCIS, there are probably dozens of questions about criminal activity, and those questions are inconsistent between forms, and–in many cases–confusing, even for someone trained in the law.
Speaking of confusing questions, if you look at the lists of questions on the I-485 and the N-400, you will see scores of yes/no questions about all sorts of activities. Some of these questions are not amenable to a yes-or-no answer. Others (many others) are poorly written and difficult to understand. In many cases, the two forms ask similar questions using different language. All this can easily trip up an applicant and can lead to unintentional inconsistencies where there really are none.
Another problem is the large number of yes-or-no questions on many forms (the I-485, for example, has over 100 yes/no questions). These questions relate to everything from criminal and immigration violations, to national security, to persecution of others, to membership in totalitarian political parties, to prostitution and illegal gambling. Most people check almost all the boxes “no,” but periodically, they may need to check “yes.” Given the vast number of questions, the fact that almost all are “no,” and the fact that many of the questions are confusing, it is easy to slip up and miss a “yes” answer. This can lead to big trouble, including having your application denied.
These examples represent just a few of the problems with USCIS forms, and every immigration lawyer can cite many more. The short answer is that all USCIS forms need a major overhaul. This should be done with an eye towards making the forms shorter (the I-485 and the N-400 are each 20 pages long). The forms should be made consistent with each other in terms of format and the substance of questions asked. They should accommodate different naming and address conventions.
Also, USCIS needs to do something about the overwhelming number of yes/no questions. There are too many questions, many are difficult to understand or redundant (or both), and many are irrelevant (do we really need three questions about Nazi activity between 1933 and 1945?). The number of questions should be reduced and the questions themselves should be simplified so that you don’t need a law degree to understand what the heck USCIS is asking about.
One final point on forms: Why are we still printing forms and mailing paper copies to the agency (to a plethora of different mailing addresses)? A limited number of forms can be filed online, and USCIS should expand e-filing, so that all forms and evidence can be filed online. E-filing would also solve the problem of USCIS rejecting forms for simple mistakes or for not writing “N/A” in every empty box.
To reform its forms, USCIS needs help. It needs to hear from immigration advocates, immigrants, and other stakeholders. Forms should be more understandable and more able to accommodate cultural differences. Questions should be standardized across different forms, and the format of the forms should be made more consistent. All forms should be available for online filing.
Improving USCIS forms is long overdue. Fixing the forms will make USCIS more efficient, and will ultimately save everyone time, trouble, and money. The purpose of USCIS forms is to facilitate the application process and to help USCIS determine who is–and is not–eligible for an immigration benefit. More efficient forms will help move USCIS towards these goals.
If you’ve filed an application or petition with USCIS lately, you’ve probably noticed that receipts have been substantially delayed. Many people are waiting six, seven, eight weeks or more for receipts. Below is an announcement from USCIS about the delays at their Lockbox facilities, along with some tips about filing. Hopefully, once we have new leadership at the agency, we will start to see some improvement. Also, of course, if we turn the corner on the pandemic, that should help as well. Anyway, below is the USCIS announcement, and I have added relevant links, for your enjoyment–
USCIS Updates: USCIS Lockbox
The USCIS lockbox facilities have received a significant increase in filings in recent weeks. This increase, along with facility capacity restrictions necessary to protect the health and safety of the lockbox workforce during the COVID-19 pandemic, is causing significant delays for processing receipt notices. We continue to work to minimize delays. Once we process your submission, we will review your package.
Your USCIS receipt will arrive. Eventually…
If you properly filed your form, we will send a receipt notice to the mailing address provided on your form, normally within 30 days. If your submission is incomplete or improperly filed, we will reject it per current procedures.
You can take steps to decrease the time it takes us to process and send your receipt notice or find out the status of your case:
· File online (if this option is available for your form type) and receive immediate confirmation that we have received your form instead of waiting for the mail;
· Create a free USCIS online account and check the status of your case from your mobile device, anywhere, anytime using our case status online tool; or
· Complete Form G-1145, E-Notification of Application/Petition Acceptance, and clip it to the front of your form to request a text message and/or email when we accept your form.
We also encourage you to follow the tips below when submitting evidence with your application package:
· Review the form instructions and checklist of required initial evidence on the form webpage (if this option is available for your form);
· Submit single-sided photocopies of requested documents, unless the form instructions specifically state you must submit an original document;
· With the exception of passport photos, please copy photographs to an 8.5”x11” sheet of paper instead of sending originals. Always send in original passport photos where requested;
· Submit only the required evidence and supporting documentation listed in the form instructions. If we need additional information, we will request it from you; and
· If you cannot provide the required primary evidence when filing a form, review the form instructions for appropriate secondary evidence.
Here’s a couple bonus tips from me (Jason – not USCIS). Sign up for informed delivery with the U.S. post office. With this service, you will get an email with photos of all the mail that is coming to your house. That way, if USCIS sends something important (and I suppose most USCIS mail is important), you will know in advance to expect it. Also, when you send your application to USCIS, send it by certified mail (we generally use flat rate mail through the U.S. postal service, which costs $7.75), so you will be able to track whether it was received. Finally, if you have to pay a fee, use a personal check, if possible. That way, you will know when the check is cashed and if you get a copy of the check from your bank, it should have the USCIS receipt number stamped onto it.
Hopefully, we will soon have a new Administration that will do a better job managing USCIS. Regardless of that, the more you can do to track and monitor your applications, the better.
What do you think would happen if a client came to my office (virtually), hired me, paid me money to file a case, and then I did not file the case and refused to return the client’s money? Here’s what I think would happen–the client would sue me to get the money back, and I might be dis-barred. Also, I could go to jail.
So what happens when a person hires USCIS to adjudicate an application for a work permit or a Green Card, pays money to the agency, USCIS determines that the person qualifies for the benefit, but then refuses to issue the document? Apparently, nothing happens. The agency keeps the money and the applicant is SOL. That is exactly what we are seeing these days for people approved for an Employment Authorization Document (“EAD”) or a Green Card.
According to a recent article in the Washington Post, “In mid-June, U.S. Citizenship and Immigration Services’ contract ended with the company that had been printing [Green Cards and EADs].” “Production was slated to be insourced, but the agency’s financial situation… prompted a hiring freeze that required it to ratchet down printing.” As of early July, about “50,000 green cards and 75,000 other employment authorization documents promised to immigrants haven’t been printed.” These are documents that the applicants paid for and qualified for, and which they need to live and work in the United States.
You may be be surprised to learn that the Trump Administration won’t always give you what you pay for.
The Administration is blaming the problem on the pandemic, which it says has impacted USCIS’s budget. But that is not the whole story. Like many agencies under President Trump, mismanagement and hostility towards the agency’s mission have resulted in budget woes that long precede the coronavirus. According to an article by the Migration Policy Institute, USCIS essentially made a profit from fee receipts every year between FY2008 and FY2018 (data was not available for prior years). But starting in FY2019 (which began on October 1, 2018–well before the pandemic), the agency started running a deficit. The basic reasons are “falling petition rates… and increased spending on vetting and enforcement.” As MPI notes–
Alongside declines in petitions, USCIS has increased spending on detecting immigration-benefit fraud and on vetting applications. Anti-fraud costs more than doubled from FY2016 to FY2020, rising from $177 million to $379 million. Vetting nearly tripled during that period, from $53 million to $149 million. In addition, enhanced vetting appears to be decreasing productivity. USCIS adjudicated 63 percent of its pending and incoming caseload in FY2016. The adjudication rate dropped to 56 percent in FY2019. Over that same period, despite falling application rates, the backlog of pending petitions grew by 1.4 million, to 5.7 million. As a result, processing times for most types of petitions have increased, with some more than doubling.
According to the Washington Post, it’s not likely that USCIS’s budget will recover any time soon–
Presidential executive orders have almost entirely ended issuance of green cards and work-based visas for people applying from outside the country; red tape and bureaucracy have slowed the process for those applying from within U.S. borders. For a while, the agency refused to forward files from one office to another The centers that collect necessary biometric data remain shuttered. These pipeline delays are likely to dramatically reduce the number of green cards ultimately approved and issued this year.
Many employees at USCIS have already received furlough notices, and unless Congress steps in with a $1.2 billion fix, approximately two-thirds of the agency’s employees will be out of work by early next month. And as we’ve seen, the agency’s budget shortfall is already having an effect–more than 125,000 people have not received Green Cards or EADs, even though they paid for, and qualified for those documents (a few documents are still being produced–one of our clients received an EAD last week).
If you are waiting for a Green Card or an EAD, what can you do?
First, for anyone with a delayed card (where the card has already been approved), apparently the USCIS Ombudsman is trying to assist. If you are waiting for an approved Green Card or EAD, the first thing to do is place an online request for case assistance with the Ombudsman. You can do that here. The Ombudsman is “sending weekly spreadsheets to USCIS to verify card requests are in line to be processed.”
For people who have been granted asylum, you are eligible to work even without an EAD (using your asylum approval document or I-94, your Social Security card, and a photo ID).
If you are waiting to receive an approved Green Card, you might try calling USCIS at 800-375-5283 to request an appointment at the local field office. Field offices can place an “I-551” stamp (also called an “ADIT” stamp) in your passport, and this indicates that you are a lawful permanent resident (a Green Card holder). Due to the pandemic, USCIS offices are closed for most in-person appointments, but if you have an “urgent need” for the I-551 stamp, you may be able to obtain an appointment. An example of an urgent need might be that you will lose your job unless you have proof of status. Maybe get a letter from your employer explaining the need, so you will have that when you try to make an appointment, and when you go to the USCIS field office.
If you have a pending asylum case and are waiting to receive an approved EAD, you might also try calling USCIS. You can ask the agency to expedite the card. However, it seems unlikely that they can do so–one USCIS employee states, “Our volume of inquiries [has] spiked concerning cases being approved, but the cards [are] not being produced… A lot [of the inquiries] are expedite requests, and we can’t do anything about it; it’s costing people jobs and undue stress.” Nevertheless, since some EADs are still being issued, perhaps a call is worth a try.
Finally, you might contact your representatives in Congress (in the House and Senate). Ask them to fund USCIS, and remind them that “Congress… must also exercise its constitutional oversight authority to create and boost meaningful accountability, transparency, and productivity within USCIS.” If Congress does not get involved, USCIS will largely shut down in a few weeks. But USCIS does not deserve a blank check. Congress should ensure that the agency uses the money to fulfill its core mission, and that it gives people what they paid for.
[Updates to this post will appear at the bottom of the article]
There is an overwhelming amount of bad news these days. You’ve probably heard about the coronavirus pandemic and the upheavals caused by racial injustice, but in the last couple weeks, there has also been a flurry of bad news in immigration-world. We could spend months dissecting all that has happened, but here I just want to alert you to the highlights (or low-lights) of recent developments. Without further ado, then, let’s get this over with–
(1) The Administration has proposed sweeping new regulations that would dramatically impact asylum seekers. The main targets of these changes are (as usual) asylum seekers from Central America and Mexico–people fleeing gang violence and domestic violence–and people arriving at the Southern border and requesting asylum. But the proposed changes affect all asylum seekers. For an overview, see this brief article and this more detailed analysis, both by Aaron Reichlin-Melnick.
The new rule seeks to block asylum seekers who passed through a third country to reach the U.S., who failed to pay taxes or worked without authorization, and who have more than one year of unlawful presence in the United States. It also allows judges to “pretermit” (deny) asylum cases where the applicant has not set forth a prima facia case for asylum (this will be a particular problem for pro se applicants, who may not know how to articulate a valid claim). The regulation also narrows the definitions of “particular social group” and “political opinion” in order to more effectively block people who face violence from non-state actors. Further, the regulation raises the bar as to what constitutes “persecution” under the law, and encourages denying asylum based on discretion. Many of these rules are meant to affect people who have already filed for asylum, and could not have known about these burdensome new regulations when they asked for protection. While my take on all this is not quite as negative as that of Aaron Reichlin-Melnick (I don’t think everyone who passes through a third country will be barred), there is no question that, if implemented, these regulations will block many otherwise-eligible applicants from receiving asylum.
With all the bad news, I thought we could use a photo of a funny monkey. Take a moment to enjoy. And then keep fighting.
One last point: These regulations are not yet in effect. There is a 30-day comment period and the regulations would go into effect sometime after that, assuming they are not blocked by a court. In the mean time, you can submit comments here (use reference number “EOIR Docket No. 18-0002”). Apparently, if more people comment, it will help delay the implementation of the rule, so please consider submitting a comment.
(2) Due to a massive budget shortfall, USCIS is set to furlough over 70% of its workforce by the end of July. The agency claims that its financial problems are due to the coronavirus, but most observers (including me) believe that the main reason is the Trump Administration’s anti-immigration policies, which have blocked or discouraged many people from seeking immigration benefits. Since USCIS is 97% funded by user fees, the dramatic drop in applications has left the agency broke. It’s hard to imagine how cases will move forward if so many workers are laid off. This means we can expect even longer delays for work permits, green cards, naturalization, adoptions, work visas, and many other types of immigration benefits. Exactly which services will be effected, we do not yet know, but it appears that USCIS has already suspended processing of most green card applications. Worse, the departure of so many experienced employees will likely result in long-term damage to the agency.
USCIS publicly claimed that it requested $1.2 billion from Congress and that it would pay back the money by increasing user fees by 10% (on top of other proposed fee increases). However, as of last week, “the Trump administration had still not made a formal request for any emergency funding.” One knowledgeable USCIS employee I spoke with believes that the Administration has no intention to request the money or save the agency. She believes that destroying USCIS is part of the Administration’s plan to cripple our immigration system.
You can sign a change.org petition to demand that Congress fund USCIS, so it can continue its mission.
(3) An Office of the Inspector General report revealed that the Executive Office for Immigration Review (“EOIR”), the office that oversees the nation’s Immigration Courts, had substantially mismanaged its budget for FY 2019. The OIG investigation was initiated after EOIR Director James McHenry sent an email inaccurately characterizing the state of the agency’s budget. The report found that “EOIR leadership failed to coordinate effectively with its budget staff,” that the agency failed to anticipate the cost of court interpreters even though it had the necessary information to project those costs, and that “miscommunication across EOIR” led leadership to miscalculate its expenses. The National Association of Immigration Judges (the judges’ union) characterizes the situation at EOIR as follows–
The mismanagement uncovered by OIG in yesterday’s report is only the tip of the iceberg of persistent systemic and structural failures at EOIR. EOIR has failed to implement an electronic filing system, failed to properly hire judge teams as instructed by Congress, failed to secure adequate space to properly run the court and has persistently shuffled immigration judge dockets resulting in the unprecedented backlog of over 1 million immigration court cases.
The judges also reference a recent TRAC Immigration report, which indicates that data released by EOIR about grant rates in Immigration Court is “too unreliable to be meaningful.” TRAC notes that “EOIR’s apparent reckless deletion of potentially irretrievable court records raises urgent concerns that without immediate intervention the agency’s sloppy data management practices could undermine its ability to manage itself, thwart external efforts at oversight, and leave the public in the dark about essential government activities.”
(4) Speaking of EOIR, in a court-packing move that would make FDR blush, Director McHenry offered buyouts to nine BIA Board Members appointed prior to the Trump Administration. Though the agency denies it, this was a clear effort to further stack the Board with Members favorable to the Administration’s agenda. Indeed, the move follows an earlier decision to elevate six Immigration Judges with unusually high asylum denial rates to the Board of Immigration Appeals. For more on the politicization of the BIA, check out this posting by Judge Paul Schmidt, a former Chairman of the BIA with first-hand experience of an earlier purge at EOIR.
(5) We have been hearing news on our immigration lawyer list serves about a possible expansion of the non-immigrant visa suspension and an additional attack on asylum seekers. Nothing is known for sure, but it seems the Administration is planning to ban some non-immigrant visas (H-1b, H-2b, L-1, and certain J-1 visas) for a limited period, and to limit OPT for F-1 students. Also, we are hearing about the possible “rescission of employment authorization for asylees, refugees, and TPS holders that would face significant legal hurdles” (the quote is from my list serve; it is not an official announcement, and it is strange, as asylees and refugees are entitled to a work permit under the law). We do not yet know what this means, but my best guess is that the Administration will try to block EADs for asylum applicants (not asylees) who have a one-year bar issue.
(6) While this is not (yet) bad news, we are anticipating a decision in a Supreme Court case where the Trump Administration is attempting to end DACA (Deferred Action for Child Arrivals), the Obama-era program created to protect from deportation certain people who arrived in the U.S. as children. As many as 800,000 people could be effected. Given how the Court has ruled in past immigration cases, I’m not optimistic about the result, but we will have to wait and see. I’ve written about asylum for DACA recipients here, though the new proposed asylum rules would greatly reduce this already difficult option.
(7) Education Secretary Betsy DeVos issued a rule barring colleges from granting coronavirus relief funds to DACA students. While Secretary DeVos claims that she is simply following the law as written by Congress, it seems that the law could have been interpreted to help the DACA students (and a substantial number of Congress people have protested the Secretary’s move). Since the pattern of this Administration is to harm the weak and vulnerable, it’s not surprising that Secretary DeVos interpreted the law in a way to exclude these students. The Secretary’s decision is the subject of a lawsuit, and so we will see what the courts decide.
Oy vey, That is more than enough for now. We can hope that courts will block some of these rules, but we also need to work to prevent a second term for this Administration, which has consistently lied about and attacked non-citizens and other vulnerable people. En la lucha!
Update from 06/17/20
AILA [American Immigration Lawyer Association] has been in contact with USCIS, Hill staff, and reporters to obtain additional information on USCIS’s current guidance for the processing of adjustment of status applications. From what we have surmised, the hold on adjustment of status cases applies to cases that are pre-processed by the National Benefits Center before being sent to local USCIS field offices and specifically the following cases:
“I-485 interviews”; and
“I-485 interview waiver cases not already distributed”.
However, “emergent or sensitive” cases, such as those related to COVID-19, may be referred by officers to leadership to determine if the cases can move forward. It is also important to note that some adjustment cases are adjudicated by SCOPS (including for example, asylum, diversity visa, EB-4, T, U and VAWA cases).
Based on member reports, adjustment of status applications continue to be approved in instances where interviews have been waived. Therefore, the “hold” seems to be in reference to those cases that require in-person interviews before a final decision can be issued.
A hold on adjustment of status interviews could appear to be consistent with the information that USCIS has released concerning its phased reopening of in-person services. Although USCIS began reopening field offices for non-emergency services on June 4, 2020, the agency announced that “offices will reduce the number of appointments and interviews to ensure social distancing.” As local USCIS field offices begin reopening, USCIS has prioritized in-person services for naturalization oath ceremonies and naturalization interviews and continues to handle emergency services. AILA expects that as more social distancing protocols are lifted, USCIS should begin resuming other types of interviews and appointments.
However, given the hold on “interview waiver cases not already distributed” it seems to indicate that USCIS has stopped actively making interview waiver determinations and adjudicating those cases. Based on conflicting reports we have received it is unclear whether this is a temporary pause on interview cases or on all adjustment of status cases at field offices.
Update from 06/18/20
First, the good news – The Supreme Court, in a 5-4 decision, has blocked the Trump Administration from ending DACA, thus (for now) protecting hundreds of thousands of people. The basic reasoning is that the Administration failed to follow the proper procedures needed to end the program. In short, the Administration’s maliciousness was defeated by its incompetence. This is a fantastic decision, and it shows that it is possible to defeat the Administration, even in the Supreme Court.
The other news is that we are receiving more information about the Administration’s plan to block asylum seekers from obtaining a work permit. There is still nothing official, but reports indicate that people who entered the country without inspection or who filed for asylum more than one year after arrival will be blocked from receiving an EAD while their asylum case is pending. Again, this has not been implemented or even officially announced, so we will need to wait for the actual proposal.
Update from 06/19/20
New regulations, which will officially be published next week, basically signal that USCIS will be taking longer to adjudicate EADs for people with pending asylum cases. I will review these after they are published, but it seems unlikely to make a big difference, given how unpredictable processing times already are.
Due to the coronavirus pandemic and the Trump Administration’s harsh anti-immigration policies, USCIS–the agency that oversees much of the nation’s immigration and asylum system–expects that “application and petition receipts will drop by approximately 61 percent” through the end of the current fiscal year (September 30, 2020). As a result, the agency is seeking a “one-time emergency request for funding” from Congress for $1.2 billion “to ensure we can carry out our mission of administering our nation’s lawful immigration system, safeguarding its integrity, and protecting the American people.” The agency plans to pay back this money by “imposing a 10 percent surcharge to USCIS application fees.” Presumably, this is on top of the dramatically increased fees the agency announced late last year (but which have yet to be implemented).
Unlike most government agencies, USCIS is largely user-funded. Indeed, the agency derives 97% of its budget from fees paid by its “customers” (immigrants and petitioners). These fees also largely cover the cost of the asylum system, which is currently free to applicants (though USCIS’s recent fee proposal includes a $50 fee for asylum). According to a USCIS spokesperson, without the injection of cash from Congress, the agency “would be unable to fund its operations in a matter of months.” This could result in “drastic actions,” which might include staff reductions. Already, USCIS employees have been notified that the agency is “severely strapped for cash due to the low number of new applications being filed,” and overtime, travel, and purchases have been put on hold.
In short, things don’t look good for USCIS. So what can be done?
There are lots of ways USCIS can increase revenue without raising fees.
USCIS is seeking additional funding from Congress and plans to pay back the money by increasing fees. But it seems to me there are better and more equitable ways raise money.
One idea is to expand the use of premium processing. Currently, certain forms for employment-based immigration allow the petitioner to pay an additional fee ($1,440) and have their case processed more expeditiously. Cases that ordinarily take many months are processed within 15 calendar days (this is the equivalent of strapping a warp drive engine to a Conestoga wagon). Paying for premium processing does not necessarily mean you receive a final decision in 15 days, but at least you get a response–either an approval, a denial or a request for additional evidence. In my experience, even if you receive a request for evidence and your case takes longer than 15 days, it is still adjudicated much more quickly than if you did not use premium processing.
I have long advocated that premium processing should be available to asylum seekers, but why limit this service to certain types of cases? Why not make it available to all USCIS applications and petitions? The agency does not have to stick with its 15-day time frame or the current fee. Maybe there could be different levels of premium processing with different time frames and different fees. Maybe some types of applications are simply not amenable to premium processing. It seems to me that these things are knowable and could be explored.
The broader use of premium processing would benefit not just those aliens who can afford it (though they would benefit the most). The injection of additional money into the system would ultimately benefit everyone. Also, by removing premium-processing cases from the mix, USCIS would have fewer “regular” cases to deal with, which would presumably allow them to move more quickly through those cases.
The way I see it, premium processing is an all around win: It helps those who pay for it, provides an option for those who need it (since some people have very good reasons to expedite their cases), improves processing times even for those who do not pay for it, and brings more money into the system, which could help keep costs down for all of USCIS’s customers.
Another idea to raise funds would be to create an online legal aid service within USCIS. There are currently private, internet-based organizations that provide fee-based assistance filling forms, filing applications, and in some cases, providing legal advice. Lawyers (such as myself) tend to be wary of these organizations, as some seem less-than legitimate and because they often cannot provide the comprehensive help needed to identify problems and resolve complex cases (also, of course, they undercut our fees, which most of us find less than endearing). But for ordinary cases, without undue complications, such services can provide cost-effective assistance to people who otherwise might not be able to afford a lawyer or secure pro bono counsel.
If private organizations can provide this type of limited legal assistance, why can’t USCIS? They certainly have the expertise. Also, it is not unprecedented for government agencies to provide help to their constituents. For example, the Department of Veterans Affairs maintains a list of accredited representatives who help veterans and their family members for no fee or a low fee. If the VA can offer this service for free, why can’t USCIS offer a similar service for a reasonable fee? The assistance could take the form of “smart” fill-able forms that provide comprehensive advice about how to do it yourself, and maybe a hot-line or in-person office, where the applicant could obtain help. Fees would vary–automated assistance might be inexpensive (or at least comparable to the existing private agencies that provide this service), while “live” help would be more expensive. If this model is economically viable for private organizations, I imagine it would turn a profit for the federal government as well.
Like premium processing, an in-house legal aid program would benefit everyone. It would directly help the people who could afford it, but it would also help reduce the burden on existing non-profit legal aid organizations, and so they could serve more people in need.
There are plenty of other ideas as well. For example, USCIS could re-instate adjustment of status based on INA § 245(i), where a person who entered the U.S. illegally can pay a penalty and obtain their residency based on a family or employment petition (currently, and with rare exceptions, people who entered illegally need to leave the U.S. to obtain residency). Also, USCIS could also stop wasting manpower and postage by arbitrarily returning applications for minor mistakes (which previously were addressed at the interview).
As you can see, USCIS has different options for increasing revenue. But given the Administration’s hostility towards immigrants, it is not surprising that they are choosing to raise fees, which is the least equitable and most damaging path available to them. With a minimum of creativity, they could come up with alternative solutions that would raise money, improve efficiency, and benefit migrants. Unfortunately, the primary concern of USCIS is not really the agency’s economic well-being. Rather, USCIS wants to weaponize fees in the same way it has weaponized bureaucratic procedures–to reduce immigration and prevent eligible people from obtaining status in the United States.
It’s rare that you’ll find the words “USCIS” and “fast” in the same sentence, unless there’s a “not” in there somewhere. The agency that processes U.S. immigration benefits is not known for its lightning speed. But if you’re in a hurry, it is possible to expedite your case. USCIS does not always agree to expedite requests, but there is usually nothing to lose by trying.
In fact, USCIS has an entire web page devoted to expedite requests. Note that this page is not for asylum cases. I wrote about expediting asylum cases here. Also, the web page does not provide information about expediting cases outside the United States. For refugees (not asylees) outside the U.S., there is some limited information about expediting here. And for humanitarian parole applications for people outside the country, there is some information about expediting available here. Finally, if a case has already been processed by USCIS and is now with the U.S. Department of State, you can find some information about expediting here. Also, you can contact the relevant U.S. Embassy directly to ask for help.
For cases being processed inside the country, the USCIS web page provides guidance for how to make an expedite request. Such cases include Employment Authorization Documents (“EAD”), I-730 petitions, Advance Parole, Refugee Travel Documents, applications for Lawful Permanent Residency (the green card), and applications for citizenship.
Regular USCIS processing.
USCIS considers all expedite requests on a case-by-case basis, and has sole discretion to decide to grant or deny such a request. This basically means that you are asking USCIS to do you a favor (expedite), and if they refuse, there is usually not much to be done. Also, in making an expedite request, USCIS requires documentation to support your claim. USCIS will not expedite any case where premium processing is available (usually, these are cases involving employment-based applications where you pay an extra fee for fast processing).
USCIS lists the following criteria for expediting a case–
Severe financial loss to a company or person, provided that the need for urgent action is not the result of the petitioner’s or applicant’s failure to: (1) File the benefit request or the expedite request in a reasonable time frame, or (2) Respond to any requests for additional evidence in a reasonably timely manner;
Urgent humanitarian reasons;
Compelling U.S. government interests (such as urgent cases for the Department of Defense or DHS, or other public safety or national security interests); or
Clear USCIS error.
USCIS indicates that “severe financial loss to a company,” means that the company is at risk of failure. For an EAD, you would want to show an equivalent level of difficulty for the individual. Maybe the person will become homeless or be unable to cover medical bills. Whatever the reason, you must show that you are not able to “withstand the temporary financial loss that is the natural result of normal processing times.”
Cases can also be expedited based on “urgent humanitarian reasons.” The most common examples are health problems (mental or physical, for you or a family member) and safety issues (maybe you are petitioning for a relative who is in danger in his home country).
If you can link your case to a “compelling U.S. government interest,” that could be another reason to expedite. Maybe you are involved with U.S. national security work, for example, and you need to expedite on that basis.
Finally, if USCIS has made a clear error, you can ask them to expedite a case to correct the error, or maybe even a subsequent case that has been delayed due to the previous error.
Whatever the reason for the expedite request, you would want to provide documentation: A letter from the doctor or your employer, medical records, evidence that your family members are living in unsafe circumstances (letters from your relatives or others who know about the problem, police reports, medical reports, country condition evidence), evidence of financial hardship, a USCIS letter admitting to their error, etc.
Expedited USCIS processing.
You can make a request to expedite at the time you file your case or anytime after you receive the receipt.
The better approach is probably to make the expedite request when you file. Include a cover letter that clearly indicates that you want to expedite (you can highlight or underline the fact that you are requesting expedition). In the cover letter, include an explanation about why you need to expedite. I prefer to keep my explanations short. In part, this is because I am lazy, but also, I think busy people at USCIS are more likely to read a short and to-the-point explanation than a long, involved explanation. Finally, along with the other evidence required for your application, include documentation supporting your request to expedite.
If you have already filed your application and now seek to expedite, the best approach is to call USCIS at 800-375-5283 (they also have a TTY line at 800-767-1833). To make this call, you will need the receipt number for your application. It is not so easy to reach a real person, but once you do, USCIS will create a service request and forwarded it to the appropriate office. After that, USCIS may request additional evidence in support of your request.
If, after making the expedite request at the time of filing or later on, you do not receive a timely response, you can call USCIS to follow up.
USCIS will (hopefully) agree to expedite the case. For applications that are completed in one step (EAD, Advance Parole, Refugee Travel Document), you should receive a decision in the case and–if all goes well–the requested document. For applications involving more than one step (an I-730 for a relative abroad, for example), the first step will be expedited, but subsequent steps will not necessarily be expedited. So for the I-730, you might still need to contact the State Department or the appropriate U.S. Embassy in order to keep things moving.
If USCIS denies the expedite request, it does not mean that they will deny the application. It only means that they will not reach a decision in an expedited time-frame (conversely, just because USCIS agrees to expedite a case does not mean that they will approve the application).
In our office, we sometimes make expedite requests for our clients. It does not always work, but sometimes it does (this always surprises me), and it can save significant time. For asylum seekers and asylees, many of whom have urgent needs, this can be a real life saver. To maximize your chances for success, you need a strong reason to expedite and documents to support your request. For such cases, USCIS will evaluate the request and–sometimes–expedite your case.
